Parvezi (Migration)

[2019] AATA 1045

Parvezi (Migration) [2019] AATA 1045 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Parvezi

CASE NUMBER:  1903360

HOME AFFAIRS REFERENCE(S):           CLF2019/800

MEMBER:Jason Pennell

DATE:26 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 26 March 2019 at 2.45pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged of an offence against the law of a State – all charges subsequently struck out by Court – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r. 2.43

CASES
Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Zhang v MIAC [2007] FMCA 1855

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the delegate was satisfied that the applicant had been charged of an offence against the law of the Commonwealth, a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

2. The applicant was granted a Subclass 050 (Bridging (General)) (‘the visa’) on 1 June 2017. Information was received by the Australia Border Force from the Victorian State Police indicating that the applicant had been charged with Contravening Family Violence Interim Intervention Order, Contravening Family Violence Interim Intervention Order Intending to Cause Harm or Fear, Persistent Contravention Family Violence Notice or Order, Make Threat to Kill, Use a Carriage Service to Offend Salk another Person (‘the offences’).  

3. As a result by a Notice of Intention to Consider Cancellation (NOICC) dated 5 February 2019 the applicant was informed by the Department of Home Affairs that as he had been charged with offences against the laws of the State his visa may be cancelled in accordance with r.2.43(1) under s.116(1)(g) of the Act. Accordingly the Department invited the applicant to make any comment on the grounds for cancellation and to give reasons as to why his visa should not be cancelled.

4. On 5 February 2019 the Department advised the applicant that having taken into account his responses to the NOICC his visa was cancelled under paragraph 116(1)(g) of the Act. The Department did not consider any other ground under s.116 of the Act in cancelling the applicant’s visa.

5. On 14 March 2019 the Magistrates Court at Sunshine made orders striking out all charges made against the applicant.

6. When considering a decision to cancel a visa under s.116, it is not open to the Tribunal on review to consider if a visa could have been cancelled under a different power (for example s.109 of the Act). However, the Tribunal is not limited to the particular issues considered by the delegate.[1] For example, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a)[2] it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b).[3] The Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[4]

   [1] SZBEL v MIMIA (2006) 228 CLR 152.

   [2] (80% attendance requirement)

   [3] (academic result)

   [4] Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18]. Note that the discussion of condition 8202(3)(b) is no longer reliable in light of the Full Court’s decision in Wen Bi Dai v MIAC (2007) 165 FCR 458.

7. In Krummrey v MIAC[5] the grounds for cancellation considered by both the delegate and the Tribunal were those in s.116(1)(a) and (b). However, the Full Federal Court accepted that it would (theoretically) have been open to the delegate, and on review the Tribunal, to have considered cancelling the visa in pursuant to s.116(1)(g) and r.2.43(1)(i). Their Honours observed that neither the delegate nor the Tribunal gave any consideration to those provisions and that it could not be known whether the Tribunal would have exercised its discretion to cancel in reliance on s.116(1)(g) in the same way as it purported to exercise its discretion under s.116(1)(a). The Court rejected the submission that the Tribunal was to be understood to have unwittingly exercised jurisdiction to which it did not direct its attention. It was not suggested that the Tribunal could not consider s.116 (1)(g) because the delegate did not do so and that issue was not expressly considered. Therefore, it appears that the Tribunal is not limited to the particular ground or grounds considered by the delegate, and/or those described in the s.119 notice.

   [5] (2005) 147 FCR 557.

8. A related issue is whether the Tribunal, when considering whether a ground for cancellation exists, is limited to consideration of the facts and circumstances as they existed at the time of the primary decision, or whether it is obliged to consider the facts and circumstances at the time of its own decision. As a general rule, unless there is some temporal element in the relevant legislation that confines the Tribunal’s consideration to the circumstances as they existed at the time of the primary decision, information about subsequent conduct and events will be relevant. To determine whether there is a temporal element of that kind, the precise nature of the decision under review must be closely considered.[6] In the case of cancellation decisions under s.116, the relevant time at which the facts are to be assessed on the review may depend on the precise terms upon which the visa was cancelled.

   [6] See Shi v MARA (2008) 235 CLR 286.

9. In this case, the applicant’s visa was cancelled under s.116(1)(g) on the basis of that he had been charged with the offences. The offences were stuck out by the Magistrates Court on 14 March 2019, after the Department’s decision. The fact that the applicant had been charged with the offences  was central to the Departments decision to cancel the applicants visa, the relevant time for considering whether a ground for cancellation exists is at the time of the Tribunals own decision.  

10. While it appears to be open to the Tribunal to exercise its discretion to consider an alternative ground under s.116 of the Act, in circumstances were the charges against the applicant have been struck out by the Magistrates Courts there are no other relevant ground upon which the Tribunal can consider cancelling the applicants visa under s.116.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) does not exist and as such the power to cancel the applicant’s visa does not arise. Accordingly, Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell
Senior Member